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google & not-for-profit libraries

Recap: In response to publisher anxieties & thinly-veiled threats of litigation, Google is implementing an opt-out provision in its scan-copyrighted-library-books program, and delaying scans of copyrighted books until November. [google blog] This has been widely reported as Google backing down. See, e.g., “Chilled by Publishers” (BoingBoing), “Google Sells Out Users” (Copyfight).

Siva Vaidhyanathan had a different take, predicated largely (it seems to me) on the fact that Google is a for-profit corporation. For once, I disagree with Siva, and on two grounds: both with library exceptionalism in this instance and the take on American Geophysical Union. Siva:

Google did not have the right to make wholesale copies of millions of copyrighted books without permission from the copyright holders. Google’s original plan fails every possible fair use test ever tried. See, for example, American Geophysical Union v. Texaco.

If copyright is to mean anything at all, then corporations may not copy entire works that they have never purchased without permission for commercial gain.

Usually I agree (not slavishly. who said slavishly?) with everything Siva (and his minions on Sivacracy) has to say, but I have to disagree with him here on a couple of points.

First, the for-profit corporation issue. Yes, Google is a for-profit corporation, and while they try not to be evil, one could argue that they won’t be able to help it. Siva wishes that libraries would take greater advantage of fair use, and so do I — libraries are wonderful and should be able to do anything they want including lots of things they don’t do now (like, yeah, scan in everything they own). But I take issue with this form of library exceptionalism. Libraries should push fair use in the service and interests of their users, history, and humanity. But libraries are not the sole beneficiaries of fair use, nor should they be. For-profit corporations, not-for-profit corporations, heck, even tax-exempt religions — all should be able to exercise fair use broadly.

Well, Siva says Google is not a library. It’s true that Google is not the mom-and-apple-pie ALA version of a downtown library, complete with modern atrium and skylights for Mayoral gatherings. But I think we have to push on “library” for a bit. The Internet Archive is certainly a library. My home collection is certainly a library. (It even circulates, and I have remote storage, and I recently began a belated investment in DVDs.) Libraries may be private, semi-private, public; for- or not-for-profit; paper or digital. Why is Google not a library?

And tactically speaking, it just doesn’t make sense for information activists / copyfighters to start downwardly limiting various users’ sets of rights. Ultimately, this will come back to bite us: what if libraries start to look more like corporations? In fact, library exceptionalism has not served the library community well: Despite numerous statutory exemptions for libraries, librarians have still retreated into deep conservatism and fear of copyright liability. Librarians realize that the laws governing information transmission are porous, and the laws that apply to for-profit corporations will also affect not-for-profit libraries.

Second, Siva cites American Geophysical Union, 60 F.3d 913 (2d Cir. 1994), very quickly in support of his point that “Google’s original plan fails every possible fair use test ever tried. See, for example, American Geophysical Union v. Texaco.”

AGU is not the law of the land, much less every possible fair use test ever tried. While influential, AGU is the law of the 2nd Circuit. (Not the Fifth, although my brain always short-circuits me there, linking “Texaco” to “Texas/5th Circuit”.) I like to remember that fair use is a fact-based, multi-factor analysis. Paraphrasing one of my copyright professors, multi-factor tests = completely unpredictable results. Each and every case looks quite different and yes, different caselaw applies. There’s a limit to how far you can draw even an influential appellate precedent, as the p2p cases show.

Unfortunately, Siva and everyone else likes to just drop-cite AGU: It was a broad decision that, famously, stands for the idea that potential licensing revenue counts as an (apparently significant) effect on the market. That’s scary, and big, and consequently the decision weighs heavily in the set of bad anti-fair-use opinions. But over-reading it has led to significant nail-biting in the library community. I do agree with Siva that it’s important to remember that AGU took place in a for-profit environment; in fact, I’ve argued that not-for-profit libraries & archives have a lot less to worry about than they think they do from AGU. But the for-profit/not-for-profit status is not the be-all and end-all of the story. AGU demonstrates a sophisticated relationship between the various fair use factors. The potential licensing revenue was significant in large part because of the for-profit status. That means that it’s not the horror story that librarians sometimes fear, but it also means that you can’t take the fair use factors as a simplistic checklist: for-profit or non-profit? market effect (including lost licensing) or no market effect? It doesn’t work that way. The market that is considered is necessarily shaped by the environment in which the alleged infringement took place. Texaco was a for-profit corporation with the resources to do licensing. Librarians have been scared because the lost-licensing-revenue aspect looks even more insane in a public or academic library context than it did in Texaco’s internal special library, routing & private desk copy context. But that particular horror has never fully paraded itself, probably because the outcome is so insane outside of the particular circumstances of Texaco. Context is everything.

And, again thinking tactically, I would argue we ought to work to limit the reactionary conservatism this case fosters, rather than trying to puff it up even more. By drop-citing AGU in the service of anti-corporate use of information, Siva made the copyright maximalists’ case. And that’s not good for libraries or Google.

A little aside: Derek Slater disagrees with Siva on AGU, too, from a different angle. Derek points out that the Appellate Court found “undue emphasis” on commerciality in the District Court’s opinion. Derek’s point is well-taken, but I still read the commercial context as significant. Between the District Court & the Appellate Court opinions, the Supreme Court issued Campbell, which expressly reversed any presumption that for-profit uses were not fair. The Appellate Court wanted to uphold the lower court’s ruling, but had to deal with Campbell; hence the nod to Campbell. But the Appellate Court was really pointing out that Texaco’s use was still a traditional library use, even if in a for-profit environment.

We do not mean to suggest that the District Court overlooked these principles; in fact, the Court discussed them insightfully, see 802 F. Supp. at 12-13. Rather, our concern here is that the Court let the for-profit nature of Texaco’s activity weigh against Texaco without differentiating between a direct commercial use and the more indirect relation to commercial activity that occurred here. Texaco was not gaining direct or immediate commercial advantage from the photocopying at issue in this case – i.e., Texaco’s profits, revenues, and overall commercial performance were not tied to its making copies of eight Catalysis articles for Chickering. Cf. Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) (revenues of reprographic business stemmed directly from selling unauthorized photocopies of copyrighted books). Rather, Texaco’s photocopying served, at most, to facilitate Chickering’s research, which in turn might have led to the development of new products and technology that could have improved Texaco’s commercial performance. Texaco’s photocopying is more appropriately labeled an “intermediate use.” See Sega Enterprises, 977 F.2d at 1522-23 (labeling secondary use “intermediate” and finding first factor in favor of for-profit company, even though ultimate purpose of copying was to develop competing commercial product, because immediate purpose of copying computer code was to study idea contained within computer program).

[38] We do not consider Texaco’s status as a for-profit company irrelevant to the fair use analysis.

The Appellate Court then goes on to talk about the value to the user of the allegedly infringing activity. This discussion is critical, because it sets up the fourth factor discussion about the lost revenues.

As a pragmatic reading, I see this tweaking of analysis as a way for the Appellate Court to deal with Campbell. In its effect, the case has been bad; it has, as I’ve stated, been an oft-cited case when librarians are playing conservative. In its reasoning, the case is also bad: the potential-lost-revenue argument is virtually boundless. But my sense is that the potential-lost-revenue argument, although terrible, has not yet fulfilled its potential — maybe because it is so boundless.

In short, I think American Geophysical Union is over-rated, and the commercial context is critical.

… a bit more coming later hopefully

update 8/14: The massive amounts of media coverage given to the Google withdrawal confirm my opinion that tactically this sucks, for libraries, authors, readers and anybody else who actually uses copyrights. So much of this coverage is described as a copyright flap, Google’s copyright misstep, etc. The bounds of fair use have just shrunk in the court of public opinion, and that’s a much longer-lasting loss than American Geophysical Union, Napster or any other case.

update 8/15: See, this is why I like Siva so well: I wish I had time today to respond to all of the good comments zooming around the blogosphere and e-mail. …. They are all helping me formulate my arguments better. I can’t help but compare favorably this response to certain other thread-baiting that’s happening on a nearby (non-IP-related) blog. And I know Siva will eventually come up with some very cogent ideas on this issue that will make me go hmm.

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[…] Siva Vaidhyanathan had a different take, predicated largely (it seems to me) on the fact that Google is a for-profit corporation. For once, I disagree with Siva, and on two grounds: both with library exceptionalism in this instance and the take on American Geophysical Union. […]

In response to Siva’s post about Google Print and fair use, Laura Quilter weighs in, hoping to push the definition of “library” in Google’s direction — and toward a more expansive view of fair use.
Google’s best ca…

The University of Michigan library, thanks to associate librarian John Wilkin, is already in Google’s lap. But Mr. Wilkin and his superiors are lap dancing so aggressively, that the net effect is that Section 108 could get dragged into any cease and desist that any association of rights holders is likely to file.

If you think libraries need more a more expansive view of fair use, then you should oppose Google and U.Michigan. Right now there is no case law behind Section 108, and the debate revolves around whether it is a safe haven for libraries, or a cap on library copying. The situation with U.Michigan and Google is the worst possible case that librarians could present in order to expand their rights.

I’ve written to administrators at U.Michigan and to every Regent, asking them to withhold copyrighted material on the grounds that Section 108 suggests that what they are doing is illegal. No response. They’re all Google-eyed. They deserve a court order, and I hope they get one.

Consider:

Mr. Wilkin initially claimed that the digitization of the entire seven million volumes was only possible due to Google’s technological innovation. This innovation, of course, was a trade secret. Later it emerged that temp workers will be turning the pages of the books. Maybe Google has a faster camera, and some decent tracking and OCR software, but that’s all.

The contract between Google and U.Michigan was confidential. Last June it was posted in response to my freedom of information request. Both Mr. Wilkin and Google are bragging that the fact that it was posted, pursuant to state law in Michigan, is an example of their mutual commitment to total openness. But note that the word “confidential” is stamped on every page.

Google has indemnified U.Michigan against any litigation that arises from the copying process. If U.Michigan is so confident that what they are doing is legal, why don’t they commit their own legal resources instead of relying on Google’s deep pockets?

Google gets to do anything it thinks it can get away with once it gets copies of copyrighted material, perpetually. They can license or sell the copy to partners, use the copy to sell ads, pass along their inventory of copies to any successor of Google, you name it. What can U.Michigan do with their copy? They can only use it on their own website, and this assumes that they take measures to prevent broad distribution or automated retrieval. Google, you see, doesn’t want any competition from the public sector.

We have a tradition of civil society that includes government regulations, nonprofit and educational institutions, and so forth. We have also had periods in our history where robber barons made a mockery of civil society by using vast piles of money to rig the system.

This is one of those times. Google is a robber baron, while libraries are a part of civil society. By insisting that Google be considered closer to a library, you in effect are dragging libraries into the mud.

The public that uses the web understands the issue here, because we’ve been through years of controversy over music file-sharing. All of a sudden you have librarians arguing that Google is really cool, and shouldn’t have to abide by the “express consent” required by copyright law. The masses cannot understand why Google should get a free ride here, and neither can I. They get it, while librarians don’t.

The only thing that Google and the cooperating libraries are doing here is making all librarians look suspicious.

Like you, I’ve seen the Texaco decision cited as an argument against doing almost everything I believe libraries should be doing. We’ve been talking about digital preservation at my library recently, and it’s good to find people who don’t maximize the effect of Texaco.

Good post, Laura. As a professor, I always wonder what messages my students remember a few years later. I’m very happy to see that you got one of my core ones!

Note, however, to me, that Google Print implicates one of my corollary maxims: NEVER BUILD A BUSINESS ON FAIR USE. Whether we like Google Print or not, unquestionably the fair use doctrine is a risky foundation for the endeavor. Thus, if Google proceeds and if Google loses fair use, we might lament the development of the fair use doctrine, but we also shouldn’t really feel sorry for them given their roll of the dice. Eric.

i agree, i wouldn’t feel sorry for google if they lost the fair use roll of the dice, although of course i would gnash my teeth for any bad doctrinal implications. i’m not thinking strategically in that way, although siva did, a little bit, in his first two posts on this issue — 8/16 and 8/13.

[…] With all the talk about Google scanning or not scanning copyrighted books, I was happy to see Laura Quilter talking about Google as a library. The Internet Archive is certainly a library. […] Libraries may be private, semi-private, public; for- or not-for-profit; paper or digital. Why is Google not a library? […]

My home collection is certainly a library. (It even circulates, and I have remote storage, and I recently began a belated investment in DVDs.)

Well sure it is Laura, but you bought those books didn’t you? You didn’t borrow them from a library and scan them into your PC did you? Calling any collection a “library” is a bit simplistic. By that reasoning, downloading music could be protected by calling the collection a “library”. P2P files are open to the public and downloaders aren’t making any profit.

[…] Now, Eric Goldman in a comment here said another of his maxims was never build a business on fair use. Google Print, of course, relies entirely on fair use (17 USC 107), so far as I can see. One way we might distinguish libraries at present is that most libraries, operating in the book-warehousing business today, rely not very much at all on fair use, and rather a lot on first sale (17 USC 109). Libraries vary with respect to the library exemptions in 108, which are used principally, so far as I know, to (a) establish reserves collections; and (b) make backups of software, videos, records, etc. […]